The Flacks Report [30 Oct. 09]

Proposals on the November Ballot:

There are two proposals to amend the State constitution on this November 3rd, 2009, General Election ballot. Here they are for your edification.

Proposal #1 allows the construction of a National Grid power line in the State forest preserve in St. Lawrence County along S.R. 56. Normally, the State constitution forbids taking any forest preserve land. This would allow the State to convey up to 6 acres of forest preserve land in exchange for 10 acres of forest land of at least equal value to be incorporated into the forest preserve from the National Grid.

Proposal #2 would authorize the Legislature to allow prison inmates to perform voluntary work for non-profits (religious, charitable, educational). Currently, convict labor may not be contracted out except to State institutions.

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Surrogate Up-date:

Nora Anderson, who won both the 2008 Primary and General election campaigns for New York County Surrogate, and her co-defendant Seth Rubenstein's motion to dismiss the ten-count indictment was mostly successful this morning when State Supreme Court Justice Michael Obus dismissed all but two counts finding lack of venue jurisdiction (the Election Law violations are not now before the Court).

Justice Obus let stand two counts under Penal Law Sec. 175.35 of allegedly filing false instruments (City Board of Elections "Disclosure Statements") of campaign contributions which exceeded the limits in September, 2008, with intent to "defraud" the Board of Elections, whose headquarters is in Manhattan. And the judge specifically directed the District Attorney to strike any reference to the citizens of New York in its Bill of Particulars regarding those two remaining counts because the citizenry are not aggrieved victims under the statute.

The parties are to return to court on Friday, 20th November, 2009, for a status conference where both the Defendants and the People will decide whether or not to appeal their respective issues. If no appeal is taken, a trial date may be set on the two remaining counts. Also, the Manhattan D.A. might request Brooklyn D.A. Hynes to pursue the dismissed counts.

The court issued a detailed 29-page decision, which is difficult to distill succinctly--and even not easily done by the professional newspapers--but here is a simplified over-view.

Much of the People's case hangs on a "conspiracy theory." The Defendants argue that there was no criminal intent or conspiracy to "defraud" the voters of New York County. The judge did not find persuasive the D.A.'s conspiracy theory of jurisdiction, and the indictment had no "evidence of conduct within the forum county [N.Y.] sufficient to establish a conspiracy to commit any substantive offense" nor charge "an overarching conspiracy nor individual conspiracies to commit the substantive offenses of offering" false instruments or business records or willfully violating the Election law contribution limits nor even a "conspiracy" in the filing of those two Board of Elections disclosure forms in New York County in order to "illegally influence an election in New York County." Additionally, the charges should have been brought in Brooklyn where Anderson's campaign office was and where the allegedly illegal money transactions took place.

The D.A. also argued that the defendants' conduct in Brooklyn and the State Board of Elections filings in Albany had a "particular effect" to effect the outcome of a N.Y. County election [under C.P.L. Sec.20.40(1)(b)]. But Judge Obus found that this "particular effect" jurisdiction did not apply.

Anderson and Rubenstein maintain that the monies were outright gifts. The judge was not persuaded that the donor Rubenstein can give candidate Anderson gifts as opposed to campaign contributions. The D.A. maintains that channeling money by the use of personal accounts to avoid campaign contribution limits is unlawful.